TOWARD AN INTERNATIONAL RIGHT AGAINST SELF- INCRIMINATION: EXPANDING THE FIFTH AMENDMENT S COMPELLED TO FOREIGN COMPULSION

Transcription

1 NOTE TOWARD AN INTERNATIONAL RIGHT AGAINST SELF- INCRIMINATION: EXPANDING THE FIFTH AMENDMENT S COMPELLED TO FOREIGN COMPULSION Neal Modi * Today, the United States is routinely involved in cross-border criminal investigations. Unlike just a few years ago, however, foreign nations have begun their own investigations as well, in many instances probing the same (mis)conduct as the United States. While a welcomed change to some, intersections between U.S. and foreign investigations have triggered novel constitutional issues for American actors. For the first time, this Note will discuss a question that arises from these intersections: is testimony independently compelled by a foreign sovereign, under threat of sanction, compelled under the Constitution s Fifth Amendment? This Note argues that it is. To arrive at this conclusion, this Note first engages with the same-sovereign rule, a rule endorsed by the Supreme Court s recent venture into the extraterritoriality of the Fifth Amendment. Finding that the rule creates an interpretive tension with other terms in the Self-Incrimination Clause (the Clause ), this Note suggests an alternative rule, one that achieves harmony among terms within the Clause. Following this interpretation, this Note argues that foreign compulsion triggers the Fifth Amendment, even when the United States is in no way involved in the compulsion. After finding that foreign compulsion is compelled, this Note moves on to decide how American courts should treat that testimony. While testimony compelled by U.S. authorities is owed use and derivative * J.D., University of Virginia School of Law, 2017; B.A., University of Virginia, I would like to thank Professors Brandon Garrett, Darryl Brown, and Barbara Armacost for their encouragement, support, and helpful feedback. This Note would look much different without their guidance. Additional thanks to the brilliant members of the Virginia Law Review who provided invaluable feedback. I would like to especially thank George Carotenuto. Finally, a special dedication is due to my parents for their support and example. This piece is as much theirs as it is mine. All errors herein are my own. 961

2 962 Virginia Law Review [Vol. 103:961 use immunity, this Note, upon noting the lack of absolute commitment to any one immunity standard in the Court s precedents, decides if a lesser immunity standard, such as use only immunity, is more fitting. Acknowledging the weighty concerns to the contrary, this Note concludes that foreign-compelled testimony is owed use and derivative use immunity, but with the caveat that the government may make nonevidentiary uses of foreign-compelled testimony. INTRODUCTION I. THE PRIVILEGE AGAINST SELF-INCRIMINATION, UNITED STATES V. BALSYS, AND FOREIGN-COMPELLED TESTIMONY A. An Introduction to Immunity B. United States v. Balsys II. REEVALUATING THE SAME-SOVEREIGN RULE A. The Same-Sovereign Rule and the Privilege B. Explaining the Same-Sovereign Rule in Balsys C. The Same-Sovereign Rule s Larger Relevance D. Compulsion E. Cooperative Internationalism III. DECIDING HOW TO TREAT FOREIGN-COMPELLED TESTIMONY A. The Evolution of Fifth Amendment Immunity B. Use and Derivative Use Immunity Today C. Treatment IV. THINKING PROSPECTIVELY CONCLUSION I INTRODUCTION N the mid-1990s, the Office of Special Investigation 1 ( OSI ) subpoenaed Aloyzas Balsys, a former Lithuanian military officer, to 1 The Office of Special Investigation ( OSI ) no longer exists. In 2010, the OSI merged with the Domestic Security Section to form what is now known as the Human Rights and Special Prosecutions Section. See Press Release, U.S. Dep t of Justice, Office of Pub. Affairs, Assistant Attorney General Lanny A. Breuer Announces New Human Rights and Special Prosecutions Section in Criminal Division (Mar. 30, 2010), [ While in existence, the OSI was responsible for detecting, denaturalizing, and deporting suspected Nazi officers who emigrated to the United States in the aftermath of World War II. See U.S. Holocaust

3 2017] International Right Against Self-Incrimination 963 answer questions related to his activities during World War II. 2 Fearing his responses could be used against him in a foreign prosecution, 3 Balsys asserted the privilege against self-incrimination (the privilege ). 4 The privilege, he contended, protected his words from use in any criminal case, whether domestic or foreign. 5 The OSI s questions, he therefore argued, would have to go unanswered. The U.S. Supreme Court disagreed. Relying on the same-sovereign rule, 6 the Court held that the privilege applies when the sovereign seeking to compel the witness is the same sovereign that would later use that testimony against him. 7 Alternatively, the Court added, the privilege applies when the compelling sovereign and the using sovereign, if not the same, are both bound by the Fifth Amendment. 8 Thus, since Balsys feared incrimination in a foreign nation, separate from the compelling authority and untouched by the Fifth Amendment, he could not assert the privilege. 9 Critics attacked the decision. The logical extension of preceding case law, critics wrote, endorsed an extraterritorial breadth to the privilege. 10 Mem l Museum, Office of Special Investigations, article.php?moduleid= [ (last visited Aug. 3, 2017). 2 See United States v. Balsys, 524 U.S. 666, 670 (1998). 3 Id. at No person... shall be compelled in any criminal case to be a witness against himself.... U.S. Const. amend. V. 5 Balsys, 524 U.S. at (stating that if Balsys could demonstrate that any testimony he might give in the [federal] deportation investigation could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States, [then] he would be entitled to invoke the privilege ). 6 Id. at Id. at Id. at Id. ( [W]e read the Clause contextually as apparently providing a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government whose power the Clause limits.... ). 10 See Diane Marie Amann, A Whipsaw Cuts Both Ways: The Privilege Against Self- Incrimination in an International Context, 45 UCLA L. Rev. 1201, (1998); Daniel J. Steinbock, The Fifth Amendment at Home and Abroad: A Comment on United States v. Balsys, 31 U. Tol. L. Rev. 209, (2000); Sara A. Leahy, Note, United States v. Balsys: Foreign Prosecution and the Applicability of the Fifth Amendment Privilege Against Self- Incrimination, 48 DePaul L. Rev. 987, 1036 (1999); Erin Kelly Regan, Comment, United States v. Balsys: Denying a Suspected War Criminal the Privilege Against Self- Incrimination, 73 St. John s L. Rev. 589, 611 (1999); Steven J. Winger, Note, Denying Fifth

4 964 Virginia Law Review [Vol. 103:961 The use of any criminal case by the Self-Incrimination Clause (the Clause ), they added, places no restriction on where that criminal case takes place. 11 Forcing Balsys to speak, even when he could show that his compelled words would be used against him in some future prosecution, would violate his privacy and dignity two of the privilege s core values. 12 Each of these criticisms, however, overlooked an alarming implication of the decision. In narrowing the Clause s application with the same-sovereign rule, the Court may have given U.S. prosecutors a free pass to use testimony compelled by a foreign nation in a U.S. prosecution. Indeed, because the Clause applies only when the Fifth Amendment restricts both the using sovereign and the compelling sovereign, testimony compelled by a foreign nation is beyond the Clause s reach. American prosecutors, therefore, can whipsaw 13 foreigncompelled defendants in a U.S. criminal trial, using their foreigncompelled testimony against them. This is a concern. As the United States appetite for cross-border criminal investigations grows 14 and its focus on culpable individuals Amendment Protections to Witnesses Facing Foreign Prosecutions: Self-Incrimination Discrimination?, 89 J. Crim. L. & Criminology 1095, (1999) (noting that preconstitutional common law case law permitted a witness to invoke the privilege out of fear of a foreign prosecution). 11 See Amann, supra note 10, at See Balsys, 524 U.S. at 690 (cataloguing Policies of the Privilege ). 13 A whipsaw (noun) is a narrow two-person crosscut saw ; to whipsaw (verb) is to defeat or best in two ways at once. Whipsaw, The American Heritage Dictionary of the English Language (3d ed. 1992); see also Knapp v. Schweitzer, 357 U.S. 371, 385 (1958) (Black, J., dissenting) ( Indeed things have now reached the point... where a person can be whipsawed into incriminating himself under both state and federal law even though there is a privilege against self-incrimination in the Constitution of each. (emphasis added)). 14 See Brandon L. Garrett, Globalized Corporate Prosecutions, 97 Va. L. Rev. 1775, (2011) (noting that federal prosecutors have strongly targeted foreign corporations and individuals thereunder in enforcing the Foreign Corrupt Practices Act); Margaret K. Lewis, When Foreign Is Criminal, 55 Va. J. Int l L. 625, (2015) (recognizing and commenting on the growth in extraterritorial reach of U.S. criminal laws); Leslie R. Caldwell, Assistant Attorney General Leslie R. Caldwell Delivers Remarks at the Securities Enforcement Forum West Conference (May 12, 2016), speech/assistant-attorney-general-leslie-r-caldwell-delivers-remarks-securities-enforcement [ ( [W]e find that we are increasingly drawn into international investigations, sometimes involving many different countries. ).

5 2017] International Right Against Self-Incrimination 965 swells, 15 intersections between U.S. and foreign investigations (whether criminal or civil) are sure to occur. Caught in the middle of these intersections, meanwhile, are individuals targets 16 and subjects 17 of U.S. investigations located abroad and susceptible to the official compulsion powers of foreign nations. Not only are these individuals unable to assert the Fifth Amendment s privilege before a foreign proceeding, but many also do not enjoy a privilege coextensive with the United States own privilege while abroad either. For instance, some nations, including those that share a common legal heritage with the United States, do not allow witnesses, subpoenaed to testify under threat of sanction, to invoke silence, even when there is a real fear of the statement s use in a future prosecution. In Canada, for example, although a person has the right not to have any incriminating evidence that the person was compelled to give in one proceeding used against him or her in another proceeding,.... a witness cannot refuse to answer a question on the grounds of self-incrimination Instead, the witness receives full evidentiary immunity in return for her words. 19 Moreover, at least one Canadian court, interpreting the Canadian Constitutional Charter, has implicitly suggested that Canadian civil regulators may compel a witness to give testimonial evidence in a Canadian investigation without needing to provide assurances that the compelled testimony will not be handed over to civil and criminal authorities in the United States. 20 A similar dissonance exists between the United States and the United Kingdom s privileges. In the United Kingdom, the Financial Conduct 15 Sari Horwitz, Justice Dept. to Focus on Individuals in Cases of Corporate Misconduct, Wash. Post (Sept. 10, 2015), justice-dept-to-focus-on-individuals-in-cases-of-corporate-misconduct/2015/09/10/c14b0ec 0-57db-11e5-abe9-27d53f250b11_story.html [ 16 A target is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. U.S. Dep t of Justice, United States Attorneys Manual ( USAM ) (1997) (Advice of Rights of Grand Jury Witnesses). 17 A subject of an investigation is a person whose conduct is within the scope of the grand jury s investigation. Id. 18 Catalyst Fund Gen. Partner I v. Hollinger Inc. (2005), 79 O.R. 3d 70 (Can. Ont. C.A.), para Id. 20 Beaudette v. Alberta (Sec. Comm n), 2016 ABCA 9 (Can.), paras

6 966 Virginia Law Review [Vol. 103:961 Authority ( FCA ), the country s chief financial regulator, can compel a witness s testimony under threat of sanction. 21 Any individual, compelled to speak before the FCA, however, is barred from refusing to speak. 22 In fact, a witness s refusal to speak is punishable as a contempt of court, even if the testimony may expose him to criminal incrimination. 23 Meanwhile, Australian authorities enforce the privilege on somewhat different terms. The breadth of immunity a witness receives turns on which state agency is compelling the witness. A witness before the Australian Securities and Investments Commission ( ASIC ), for example, can neither invoke silence nor have her words cloaked with use and derivative use immunity. 24 Instead, the ASIC only gives use immunity to persons who have made an oral statement or signing of a record to the ASIC under compulsion. 25 By contrast, under the Evidence Act 1995 (Cth), an Australian act that governs other proceedings not before the ASIC, natural persons may claim the privilege against selfincrimination on the ground that the evidence may tend to prove that the witness [either]: (a) has committed an offense against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. 26 In two major ways, Australia s privilege is far broader 21 See Fin. Conduct Auth., FCA Competition Concurrency Guidance and Handbook Amendments: Feedback on CP15/01, Finalised Guidance and Rules, at para. 6.1 (July 2015), [ 22 See id. at para Id. at para. 6.5; Financial Services and Markets Act 2000, c. 8, 177 (UK) [hereinafter FSMA], [ DLMZ]. Under 171 of the U.K. Financial Services and Markets Act 2000, the United Kingdom s financial regulator (the Financial Conduct Authority) can compel testimony from a witness. See FSMA, supra, c. 8, 171 (UK) (allowing the civil securities regulator to force an individual to talk, without the protection of silence). 24 See Australian Securities and Investments Commission Act 2001 (Cth) ss 68, 76(1)(d); see also X7 v Australian Crime Comm n (2013) 248 CLR 92, See Australian Securities and Investments Commission Act 2001 (Cth) s Evidence Act 1995 (Cth) s 128(1) (emphasis added); see also Thomas Middleton, The Privilege Against Self-Incrimination, the Penalty Privilege and Legal Professional Privilege Under the Laws Governing ASIC, APRA, the ACCC and the ATO Suggested Reforms, 2008 ABR LEXIS 18, at *79 81 (Mar. 2008) (summarizing the distinctions in Australia s application of a privilege against self-incrimination).

7 2017] International Right Against Self-Incrimination 967 than the United States privilege. It allows a witness to invoke silence both in fear of foreign incrimination 27 and in fear of civil penalty. 28 Amidst these differences in peer nations applications of a privilege against self-incrimination, an individual s inability to assert the Fifth Amendment privilege (and its right to silence) while abroad alongside the Supreme Court s endorsement of the same-sovereign rule creates a real danger that a witness s foreign-compelled testimony can be used against him in a U.S. criminal proceeding. This fear is only exacerbated by the fact that certain nations have condoned the exchange of compelled information to foreign authorities, including to the United States. 29 Considering this international landscape, this Note asks whether testimony involuntarily given to a foreign nation, extracted under the threat of state sanction, is compelled under the Fifth Amendment and, if so, how that testimony should be treated in an American criminal case. To be fair, this is not the first paper to explore the extraterritorial reach of the Fifth Amendment s Self-Incrimination Clause. Several articles have discussed whether U.S. prosecutors can use testimony coerced (though not compelled) 30 by foreign actors abroad. 31 Meanwhile, 27 Cf. United States v. Balsys, 524 U.S. 666, 669 (1998) (barring a witness, in the United States, from invoking the privilege when he fears incrimination under the laws of a foreign sovereign). 28 Cf. In re Gault, 387 U.S. 1, 49 (1967). 29 See Beaudette v. Alberta (Sec. Comm n), 2016 ABCA 9 (Can.), paras (citing R. v. Hape, [2007] S.C.R. 292, para. 48 (Can.)) (dismissing the appellant s argument under 7 of the Canadian Charter of Rights and Freedoms that American prosecutors and American courts possible refusal to confer use and derivative use immunity the same immunity owed in Canadian criminal proceedings to the appellant s Canadian-compelled testimony would violate his Charter rights); see also Jason Vukelj & Megan K. Vesely, How the SEC May Receive Testimony Compelled in U.K., Canada, N.Y. L.J. (Apr. 7, 2014), Testimony-Compelled-in-UK-Canada?slreturn= [ F4ER] (noting that combined, Canada and the United Kingdom have 3,533 companies dually listed in their home nations and the United States and that, because these corporations and their employees are subject to regulation in both countries (the United States and Canada or the United Kingdom), they are particularly vulnerable to the transfer of compelled testimony between the United States and the foreign nations). 30 There is an important distinction to be made between these two types of testimony. While coerced testimony typically involves the informal use of extractive methods the Court has found to be presumptively coercive, see Kate E. Bloch, Fifth Amendment Compelled Statements: Modeling the Contours of Their Protected Scope, 72 Wash. U. L.Q. 1603, (1994), compulsion offers a Hobson s choice to the witness testify or face sanction,

8 968 Virginia Law Review [Vol. 103:961 other articles have analyzed the Fifth Amendment implications of joint investigations investigations cooperatively undertaken by the United States and foreign nations. 32 Yet surprisingly, little has been written about whether testimony a foreign nation has independently compelled, pursuant to its own powers and under threat of state sanction, is available for use in a U.S. criminal case. 33 including possible criminal punishment. Id. As a general rule, U.S. prosecutors may offer testimony coerced by foreign agents in a foreign jurisdiction with two exceptions: (1) if the statement was, on its face, involuntary and the means used unconscionable, see United States v. Karake, 443 F. Supp. 2d 8, (D.D.C. 2006), or (2) if the statement was the product of a joint venture between the United States and foreign agents, In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, , (2d Cir. 2008). Where these exceptions are met, the foreign-coerced testimony is inadmissible in a U.S. courtroom. See Vukelj & Vesely, supra note 29. These exceptions, however, are materially different from instances where a foreign state uses its power to subpoena, backed by threat of punishment, to compel an individual to speak. 31 See, e.g., Jenny-Brooke Condon, Extraterritorial Interrogation: The Porous Border Between Torture and U.S. Criminal Trials, 60 Rutgers L. Rev. 647, (2008) (arguing that U.S. courts may not be able to adequately address the issue of confessions coerced by foreign actors); Geoffrey S. Corn & Kevin Cieply, The Admissibility of Confessions Compelled by Foreign Coercion: A Compelling Question of Values in an Era of Increasing International Criminal Cooperation, 42 Pepp. L. Rev. 467, (2015) (arguing that a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial, even if the confession is extracted by foreign actors); Karen Nelson Moore, Aliens and the Constitution, 88 N.Y.U. L. Rev. 801, (2013) (questioning whether Colorado v. Connelly should apply to confessions made to foreign officials because the Supreme Court has not addressed the issue and lower courts have avoided deciding the question); Julie Tanaka Siegel, Note, Confessions in an International Age: Re-Examining Admissibility Through the Lens of Foreign Interrogations, 115 Mich. L. Rev. 277, (2016) (noting that even foreign-coerced testimony may be admissible in the United States). 32 See Irvin B. Nathan & Christopher D. Man, Coordinated Criminal Investigations Between the United States and Foreign Governments and Their Implications for American Constitutional Rights, 42 Va. J. Int l L. 821, (2002); Gregory O. Tuttle, Note, Cooperative Prosecution and the Fifth Amendment Privilege Against Self-Incrimination, 85 N.Y.U. L. Rev. 1346, (2010); see also Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir. 1980) ( Under the joint venture doctrine, evidence obtained through activities of foreign officials, in which federal agents substantially participated and which violated the accused s Fifth Amendment or Miranda rights, must be suppressed in a subsequent trial in the United States. ). 33 For light treatment on the subject, see David Rundle, Testing the 5th: Compelled Testimony from Foreign Gov ts, Law360 (Apr. 11, 2016, 10:36 AM), [ The Supreme Court, as well as many circuits, have yet to address whether the Fifth Amendment covers compulsion by a foreign sovereign. That

9 2017] International Right Against Self-Incrimination 969 Part I of this Note introduces readers to the privilege against selfincrimination, detailing when a U.S. witness may invoke the privilege, the implications of doing so, and how the state can purchase an individual s constitutionally protected testimony with immunity. From there, Part I explains the Supreme Court s reasoning in United States v. Balsys, the Court s most recent decision into the extraterritorial application of the Clause. After unfolding the reasoning in Balsys, Part I details how that opinion s reasoning may grant U.S. prosecutors the free use of foreign-compelled testimony in U.S. prosecutions. Part II reevaluates that outcome. It argues that granting a U.S. prosecutor the unrestricted use of foreign-compelled testimony exposes a tension with other terms in the Clause. This tension undercuts the same-sovereign rule s ability to define the reach of the Clause when the compelled testimony is foreign and its use is domestic. To address this tension, Part II attempts to reconcile the same-sovereign rule with other terms of the Clause, namely the word compelled. In doing so, Part II finds that a witness s inability to assert the privilege overseas in a proceeding in which she is formally compelled to speak does not render the Clause irrelevant. A foreign nation, therefore, can trigger the Clause by its decision to compel testimony, pursuant to its own powers, even when the United States is entirely uninvolved in the compulsion. Having found foreign-compelled testimony to qualify as compelled under the Clause in Part II, Part III endeavors to discover the precise immunity (or exclusion) owed to foreign-compelled testimony. To begin, Part III comments on the Supreme Court s historic troubles in determining what immunity is necessary to supplant the privilege. Given this lack of commitment to any one immunity standard, this Part asks said, one case involving the use of foreign-compelled testimony in a U.S. criminal case has arrived in a U.S. court. See United States v. Allen, 160 F. Supp. 3d 684, (S.D.N.Y. 2016) (noting that the alleged inclusion of foreign-compelled testimony in a U.S. federal trial may trigger Kastigar v. United States s use and derivative use prohibition and finding that the government, by a preponderance of the evidence, met its burden under Kastigar in showing that the evidence it used in a federal trial was wholly independent of the compelled testimony). United States v. Allen was heard on appeal in the U.S. Court of Appeals for the Second Circuit on January 26, See William Gorta, 2nd Circ. Drills DOJ on Use of Compelled Libor Testimony, Law360 (Jan. 26, 2017, 8:03 PM), articles/885485/2nd-circ-drills-doj-on-use-of-compelled-libor-testimony [ 7SF4-L5DN]. For a fuller discussion of Allen, see infra Part IV. Allen was decided on July 19, See United States v. Allen, 2017 WL , at *27 (2d Cir. July 19, 2017) (overturning the district court s decision that the government had met its Kastigar burden).

10 970 Virginia Law Review [Vol. 103:961 whether foreign-compelled testimony, once within the United States, should receive use and derivative use immunity a treatment identical to testimony formally compelled by U.S. authorities or whether the testimony should receive a lesser protection, such as use only immunity. Ultimately, this Part concludes that, to best uphold the Fifth Amendment s policies, American courts must cloak foreign-compelled testimony with use and derivative use immunity, but with the caveat that prosecutors can make nonevidentiary uses of that testimony. I. THE PRIVILEGE AGAINST SELF-INCRIMINATION, UNITED STATES V. BALSYS, AND FOREIGN-COMPELLED TESTIMONY A. An Introduction to Immunity In the United States, an individual is not automatically entitled to assert his constitutional privilege against self-incrimination. 34 Instead, he may assert the privilege in any type of official proceeding (criminal, civil, administrative, legislative, or adjudicative) only if he reasonably believes 35 that the disclosure of information could expose him to criminal prosecution or penalty 36 in either a state or federal prosecution. 37 Where such a belief exists, the witness can vindicate his Fifth Amendment privilege by invoking silence. 38 This invocation is a precaution, a prophylactic to ensure that the prosecution cannot use any 34 See Zicarelli v. N.J. State Comm n of Investigation, 406 U.S. 472, 478 (1972) (stating that the witness must face a real danger of conviction to invoke the privilege since the privilege does not protect against remote and speculative possibilities ). 35 A reasonable belief that disclosure exposes the witness to criminal consequences can exist when the witness s answers would in themselves support a conviction but also when the answers would furnish a link in the chain of evidence needed to prosecute the witness. Hoffman v. United States, 341 U.S. 479, 486 (1951). In practice, courts allow a speaker to assert the privilege as long as the risk of criminal penalty is not imaginary or totally improbable. See Blau v. United States, 340 U.S. 159, 161 (1950). 36 What qualifies as criminal prosecution or penalty has also been disputed. Suffice it to say, the privilege is not available when the only danger is exposure to civil liability. See In re Gault, 387 U.S. 1, 49 (1967). Nor is the privilege available when the only danger is social opprobrium. See Ullman v. United States, 350 U.S. 422, (1956). 37 See Malloy v. Hogan, 378 U.S. 1, 11 (1964) (incorporating the Fifth Amendment s privilege to the states). 38 Brown v. Walker, 161 U.S. 591, 599 (1896).

11 2017] International Right Against Self-Incrimination 971 potentially incriminating statements against him in the future. 39 In this sense, an invocation of silence is a conditional constitutional rule, not an absolute constitutional right. 40 Underscoring this distinction is the fact that a violation of the privilege only occurs at trial, 41 a detail that creates space between when the privilege is relevant (at the time of invocation) and when a violation of the privilege may occur (at trial). This space, more importantly, enables the government to purchase an individual s testimony, protected by her invocation of silence, with immunity. Yet the immunity the state must offer a witness to purchase her constitutionally protected testimony is not absolute. 42 To receive a witness s constitutionally protected testimony today, the government must offer the witness use and derivative use immunity, otherwise known as Kastigar immunity. 43 This 39 See United States v. Patane, 542 U.S. 630, 639 (2004) (stating that Miranda established a prophylactic rule that sweep[s] beyond the actual protections of the Self-Incrimination Clause ); Michigan v. Tucker, 417 U.S. 433, (1974) ( [T]he natural concern which underlies... [Fifth Amendment] decisions is that an inability to protect the right at one stage... may make its invocation useless at a later stage. ). 40 See Dickerson v. United States, 530 U.S. 428, 444 (2000) (stating that Miranda established a constitutional rule, not a constitutional right). 41 See Chavez v. Martinez, 538 U.S. 760, 767 (2003) (plurality opinion). There is a circuit split regarding when exactly a criminal case begins, with some circuits holding that certain pre-trial hearings qualify as part of the Fifth Amendment s criminal case. Compare Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005) ( The Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial, even though pre-trial conduct by law enforcement officials may ultimately impair that right. ); Burrell v. Virginia, 395 F.3d 508, 514 (4th Cir. 2005) ( [The plaintiff] does not allege any trial action that violated his Fifth Amendment rights; thus, ipso facto, his claim fails on the [Chavez] plurality s reasoning. ); Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003) ( [A] plaintiff may not base a 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff s answers were used against her at trial. ), with Vogt v. City of Hays, 844 F.3d 1235, 1242 (10th Cir. 2017) (holding that the Fifth Amendment applies to all proceedings in a criminal prosecution); Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir. 2009) (holding that using coerced statements at trial is not necessary to claim a violation of Fifth Amendment rights); Higazy v. Templeton, 505 F.3d 161, 171 (2d Cir. 2007) ( [T]hat use or derivative use of a compelled statement at any criminal proceeding against the declarant violates that person s Fifth Amendment rights; use of the statement at trial is not required. (quoting Weaver v. Brenner, 40 F.3d 527 (2d Cir. 1994))); Sornberger v. City of Knoxville, 434 F.3d 1006, 1027 (7th Cir. 2006) (same, but extending it to suppression hearings and arraignments). 42 See Kastigar v. United States, 406 U.S. 441, 453 (1972). 43 Id.

12 972 Virginia Law Review [Vol. 103:961 type of immunity, codified in 18 U.S.C. 6002, 44 prohibits the direct and indirect use of the witness s compelled, immunized statements against her in a future criminal trial. Plainly put, use and derivative use immunity seeks to treat the compelled witness as if she asserted silence. 45 Granting use and derivative use immunity, though, does not foreclose a prosecution of the previously compelled individual. 46 If the government seeks to prosecute a previously compelled individual, it must prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. 47 The government s failure to meet this burden suggests that the prosecution has somehow benefited from the defendant s prior compulsion, placing him in a worse position than he would be had he remained silent. 48 The consequences of the prosecution s failure to prove U.S.C (2012) reads: Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to (1) a court or grand jury of the United States, (2) an agency of the United States, or (3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, and the person presiding over the proceeding communicates to the witness an order issued under this title, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. 45 See Kastigar, 406 U.S. at Id. at 461 ( The statute, like the Fifth Amendment, grants neither pardon nor amnesty. ); see also Murphy v. Waterfront Comm n of N.Y. Harbor, 378 U.S. 52, 106 (1964) (White, J., concurring) ( The Constitution does not require that immunity go so far as to protect against all prosecutions to which the testimony relates.... [I]t is possible for a federal prosecution to be based on untainted evidence after a grant of federal immunity in exchange for testimony in a federal criminal investigation. ). 47 Kastigar, 406 U.S. at (stating that the government bears the heavy burden of proving that all the evidence it proposes to use was derived from legitimate independent sources (emphasis added)). Yet despite this burden being heavy, the government need only make this showing by a preponderance of the evidence. United States v. Nanni, 59 F.3d 1425, (2d Cir. 1995); see also United States v. Seiffert, 501 F.2d 974, 982 (5th Cir. 1974) (holding that the government is not required to negate all abstract possibility of taint, but only needs to show by a preponderance that its evidence was derived from independent sources). 48 This duty to show no connection to the compelled testimony is analogous to the Fourth Amendment s independent source doctrine. Under the independent source doctrine, if the

13 2017] International Right Against Self-Incrimination 973 this duty turn on the necessity of the tainted evidence in the criminal case. 49 The inappropriate use of immunized evidence can result in a case s dismissal or a conviction s reversal. 50 B. United States v. Balsys In Balsys, the Supreme Court found that a U.S. witness, Aloyzas Balsys, could not assert the privilege against self-incrimination unless the prosecution he feared was within the United States. 51 If Balsys could demonstrate that any testimony he might give in the [federal] investigation could be used in a criminal proceeding against him brought by the Government of either the United States or one of the States, the Court wrote, [then] he would be entitled to invoke the privilege. 52 Otherwise, the privilege could not protect Balsys. The Balsys Court s holding turned on Malloy v. Hogan, 53 a 1964 case that incorporated the Fifth Amendment s privilege against selfincrimination to the states. 54 The Court noted that following Malloy, state and federal jurisdictions became the same sovereign for purposes government can successfully argue that the fruits of an unlawful search were later obtained from a source untainted by the initial illegality or would have derived from an untainted source, then the exclusionary rule does not apply. Nix v. Williams, 467 U.S. 431, (1984) (citing Kastigar, 406 U.S. at 457, ). 49 See, e.g., United States v. Mapes, 59 M.J. 60, 71 (C.A.A.F. 2003). 50 United States v. Schmidgall, 25 F.3d 1523, (11th Cir. 1994) (noting that dismissal of an indictment is not required when use of immunized testimony was harmless beyond a reasonable doubt). A trial court may dismiss a criminal prosecution on Kastigar grounds even before the trial starts if the government fails to show, by a preponderance of the evidence, that the evidence it proposes to use is independent of the immunized testimony. See Kastigar, 406 U.S. at A trial court may also make this finding during or after the trial. See id. Circuits, however, are not uniform on when to hold a Kastigar hearing. Compare United States v. Slough, 677 F. Supp. 2d 112, 130 n.29 (D.C. Cir. 2009) ( The Kastigar hearing may be held pre-trial, post-trial, mid-trial (as evidence is offered), or [through] some combination of these methods, although [a] pre-trial hearing is the most common choice. (alteration in original) (quoting United States v. North, 910 F.2d 843, (D.C. Cir. 1990))), with United States v. Helmsley, 941 F.2d 71, 80 (2d Cir. 1991) (pushing a Kastigar hearing to after trial to determine whether the government s evidence was from independent sources and to avoid disclosure of the government s case before trial); United States v. Volpe, 42 F. Supp. 2d 204, 219 (E.D.N.Y. 1999) (same). 51 Balsys, 524 U.S. at 669, Id. at U.S. 1 (1964). 54 Balsys, 524 U.S. at 681.

14 974 Virginia Law Review [Vol. 103:961 of the privilege. 55 And so, unlike before, state witnesses could now invoke the privilege even when they feared the use of their compelled statements by federal authorities. 56 The same became true for federal witnesses after Malloy. They, too, could invoke the privilege even when they feared the use of their compelled statements by state authorities. 57 Thus, following Malloy, the privilege protected witnesses who were compelled to testify before any U.S. authority from any U.S. prosecution. Decisive in Balsys, however, was the fact that there was no analog of Malloy extending the Fifth Amendment to foreign nations. 58 The absence of this analog returned the Balsys Court to a pre-malloy era when the States were not bound by the privilege and where state and federal jurisdictions were, for purposes of the privilege, separate sovereigns. 59 Under this separate-sovereign rubric, testimony compelled in either a state or federal proceeding was admissible in a prosecution of the other. 60 Witnesses, in other words, could be whipsawed: forced to testify in one sovereign within the United States only to have that testimony used against them by another sovereign within the United States. This was true even though there [was] a privilege against selfincrimination in the Constitution of each. 61 It was under this pre-malloy framework that the Court denied Balsys the privilege s protection. Balsys, analogous to a pre-malloy federal witness fearing prosecution in a state to which the Fifth Amendment had yet to apply, could not assert the privilege in fear of a foreign nation s 55 Id. at Murphy, 378 U.S. at (finding that immunity conferred by a speaker in a state proceeding must be respected by a federal jurisdiction given that the privilege applies equally to both federal and state jurisdictions), overruling Knapp v. Schweitzer, 357 U.S. 371, (1958) (holding that a state can compel a witness to give testimony that might incriminate him under federal law). 57 Balsys, 524 U.S. at 680 (citing Murphy, 378 U.S. at 77 78) (explaining that the constitutional privilege protected a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law ). 58 Id. at Id. 60 See United States v. Murdock, 290 U.S. 389, 396 (1933) ( [O]ne under examination in a federal tribunal could not refuse to answer on account of probable incrimination under state law. ). 61 Knapp, 357 U.S. at 385 (Black, J., dissenting).

15 2017] International Right Against Self-Incrimination 975 use of his testimony. And just like a state prosecutor in the pre-malloy era, foreign prosecutors could freely use Balsys s U.S.-compelled testimony against him in a prosecution of their own. If this is the correct way to read Balsys, then the continued absence of an international analog to Malloy (extending the privilege to foreign nations) also means that pre-malloy case law controls whether testimony compelled abroad is admissible in a criminal case within the United States. Interestingly, pre-malloy case law placed no restrictions on a sovereign, burdened by the Self-Incrimination Clause, to inhibit it from freely using testimony compelled by a sovereign unburdened by the Clause. In Knapp v. Schweitzer, decided six years before Malloy, the Supreme Court held that a state witness could not refuse to answer questions that could incriminate him in a federal court. 62 Because the Clause had yet to apply to the states, the Knapp witness s privilege only protected him from prosecution by the compelling authority. Therefore, the witness s responses before a state grand jury could be used by the federal government against him, despite the Clause s clear application to federal courts. 63 Writing for the majority in Knapp, Justice Frankfurter summarized the result by stating that [i]f a person may, through immunized self-disclosure before a law-enforcing agency of the State, facilitate to some extent his amenability to federal process, or vice versa, [then] this too is a price to be paid for our federalism. 64 If, with the reasoning from Balsys in mind, pre-malloy case law controls whether a U.S. prosecutor can use foreign-compelled testimony in the United States, then the outcome for the foreign-compelled defendant, now facing trial in the United States, is alarming. The defendant is the functional equivalent of the state witness in Knapp. And like that witness, her previously compelled testimony is available for full use in a court to which the Clause unequivocally applies. Under the logic of Knapp, a U.S. prosecutor (state or federal) can whipsaw a 62 Id. at (majority opinion). 63 Id. at Id.; see also Feldman v. United States, 322 U.S. 487, (1944) (holding affirmatively that testimony compelled by a state could be introduced into evidence in the federal courts).

16 976 Virginia Law Review [Vol. 103:961 foreign-compelled defendant in a U.S. courtroom. 65 As Justice Frankfurter may have put it, this is the price to be paid for our international comity. 66 II. REEVALUATING THE SAME-SOVEREIGN RULE But it is not altogether clear whether the same-sovereign rule, applied in an international milieu, controls when the compulsion is by a foreign nation. What follows then is a reevaluation of the same-sovereign rule, its ability to explain the outcome in Balsys, and its larger relevance to the privilege s application in a cross-border setting. A. The Same-Sovereign Rule and the Privilege To many, Murphy v. Waterfront Commission of New York Harbor overruled the same-sovereign rule. In facts very similar to those in Knapp v. Schweitzer, the petitioners in Murphy refused a state subpoena to testify, despite immunity offers from state prosecutors, out of fear that 65 That a prosecutor can, even after Malloy, whipsaw a defendant with her compelled testimony is not without other support either. Courts have found that, because the privilege against self-incrimination is only a restraint against the state burdened by the Constitution, developed to protect an individual in what was thought to be an unequal contest with it, see Wayne R. LaFave et al., Criminal Procedure 2.10(d) (5th ed. 2009), the privilege does not apply when a nonstate actor has forced an individual to speak, even in a compelled setting. For more, see United States v. Solomon, 509 F.2d 863, 870 (2d Cir. 1975) (finding that testimony compelled by the New York Stock Exchange ( NYSE ) did not trigger the Fifth Amendment because doing so would give a private entity the power to grant immunity without any weighing of the need for the evidence against the undesirability of conferring any immunity which goes beyond the testimony or information itself, which would be an intolerable result). A foreign nation may be analogous to a private entity within the United States. To the extent a U.S. court does not want to confer immunity-granting power to a private organization, the same can also be said of a foreign nation. Giving a foreign nation a choice over who receives immunity in the United States can be a similarly dangerous proposition. But unlike a private entity in (or outside) the United States, foreign nations can sanction an individual, with the force of the state, for refusing to speak, a detail that may distinguish it from private compulsion. 66 International comity, a doctrine which asks a court to apply foreign law or limit its own jurisdiction or adjudication out of respect for a foreign sovereign, see Joel R. Paul, The Transformation of International Comity, 71 L. & Contemp. Probs. 19, (2008), undoubtedly plays an important role here. If foreign nations possess the ability to use U.S.- compelled testimony in their own prosecutions, absent any evidence of joint cooperation, see Balsys, 524 U.S. at , then in the name of comity and reciprocity, U.S. prosecutors should be allowed to use foreign-compelled testimony freely in our courts as well.

17 2017] International Right Against Self-Incrimination 977 their answers may incriminate them under federal, not state, law. 67 Finding no justification for their refusal, the petitioners were held in contempt by a New Jersey trial court. 68 Upholding these convictions, the New Jersey Supreme Court held that a state may compel a witness to give testimony that might be used in a federal prosecution against him. 69 In doing so, it paraphrased what was then correct law: immunity against prosecution is strictly a limitation on the immunity-granting jurisdiction. The same-sovereign rule supported the petitioners contempt conviction. But in Murphy, the U.S. Supreme Court finally disagreed with this rule. 70 On the same day the Court incorporated the Fifth Amendment to the states in Malloy v. Hogan, 71 the Court concluded in Murphy that holding the petitioners in contempt because of their refusal to testify out of fear of federal prosecution violated the Fifth Amendment. 72 A new era of state-federal cooperation in criminal investigations mandated that different jurisdictions within the United States reciprocally respect the privilege in order for the privilege to have any force. 73 [T]here is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction, the Court wrote. 74 Expanding the privilege in this way, the Court added, properly serviced the Fifth Amendment s values since [m]ost, if not all, of [the privilege s] policies and purposes are defeated 67 Murphy, 378 U.S. at In re Application of the Waterfront Comm n of N.Y. Harbor, 189 A.2d 36, 39 40, 49 (N.J. 1963). 69 Id. at 49; see also Knapp, 357 U.S. at 380 (holding that the Fifth Amendment privilege against self-incrimination applies only against the federal government); Feldman, 322 U.S. at (finding that [t]he Constitution prohibits an invasion of privacy only in proceedings over which the [federal] Government has control ) U.S. at ( We reject as unsupported by history or policy the deviation from that construction only recently adopted by this Court.... We hold that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law. ) U.S. 1, 8 10 (1964). 72 Murphy, 378 U.S. at Id. at (Harlan, J., concurring). 74 Id. at 77 (majority opinion).

18 978 Virginia Law Review [Vol. 103:961 when a witness can be whipsawed into incriminating himself under both state and federal law. 75 This reasoning was not lost on the Balsys Court. Indeed, the majority acknowledged that the Murphy Court expressed a comparatively ambitious conceptualization of personal privacy underlying the Clause, one that could grant Balsys the protection he sought. 76 But such an expansive reading of Murphy finding a witness s testimonial privacy as the headline criterion in the privilege s interpretation was, to the Court, inaccurate. 77 The holding in Murphy was instead limited by the reach of Malloy, the Balsys Court wrote. 78 Because, after Malloy, state and federal jurisdictions became one sovereign under the privilege, a witness in either jurisdiction could assert the privilege whenever he feared incrimination in the other. 79 Murphy, therefore, did not upset the same-sovereign rule s importance to the privilege; it merely expanded the scope of the sovereign. 80 However valid the Court s explanation of Murphy may have been, the same-sovereign rule s two-pronged test analyzing where the compulsion takes place and where the compelled testimony will be used misunderstands the Clause. The rule fails to understand that the Clause s sole focus is in its prohibition on the use of any involuntary testimony. 81 Where the same-sovereign rule begins to crumble, then, is 75 Id. at (quoting Knapp, 357 U.S. at 385 (Black, J., dissenting)). 76 Balsys, 524 U.S. at Id. at Id. at Id. at 688 (citing Randall D. Guynn, Note, The Reach of the Fifth Amendment Privilege when Domestically Compelled Testimony May Be Used in a Foreign Country s Court, 69 Va. L. Rev. 875, (1983); Diego A. Rotsztain, Note, The Fifth Amendment Privilege Against Self-Incrimination and Fear of Foreign Prosecution, 96 Colum. L. Rev. 1940, , 1949 & nn (1996)) ( [T]o the extent that the Murphy majority went beyond its response to Malloy and undercut Murdock s rationale on historical grounds, its reasoning cannot be accepted now. Long before today, indeed, Murphy s history was shown to be fatally flawed. ). 80 As one commentator put it, Murphy simply amended the Self-Incrimination Cause to read: No government within the United States shall compel a person to be a witness against himself in the courts of any government within the United States. Peter Westen, Self- Incrimination s Covert Federalism, 11 Berkeley J. Crim. L. 1, 11 (2006). 81 See New York v. Quarles, 467 U.S. 649, (1984) (O Connor, J., concurring in judgment in part and dissenting in part) ( Only the introduction of a defendant s own testimony is proscribed by the Fifth Amendment s mandate that no person shall be